In the Matter of A.V.B.M., A Minor Child. Keith Red Elk, Petitioner/Appellant, v. Laura McBride, Respondent/Appellee
Red Elk v. McBride
11 Am. Tribal Law 282
In the Matter of A.V.B.M., A Minor Child. Keith Red Elk, Petitioner/Appellant, v. Laura McBride, Respondent/Appellee.
In the Matter of A.V.B.M., A Minor Child. Keith Red Elk, Petitioner/Appellant, v. Laura McBride, Respondent/Appellee.
No. 563.
Fort Peck Court of Appeals.
Aug. 16, 2011.
Order on Motion for Clarification Nov. 17, 2011.
Alfred B. Azure for Appellant, Keith Red Elk.
Appellee, Laura McBride, made no appearance.
OPINION AND ORDER
This matter comes before the Fort Peck Court of Appeals on an appeal of a Tribal Court Order dated March 14, 2011.
The Order denied jurisdiction over the cause of action and dismissed an underlying Petition for Child Custody and Adjudication of Paternity. The minor child and Appellee mother reside in Alaska. The Court, Honorable Barry Bighorn, Sr. presiding, ruled that the most convenient forum in the matter is in the State of Alaska. A Petition for Writ of Supervisory Control, filed by Appellant, and generally alleging generally the same issues as this appeal, also appears in the file.
OPINION
This Court has reviewed the file, the pleadings, the Briefs and Memorandums of Law submitted by counsel for Appellant. The matter of jurisdiction is well-briefed and presented by Appellant, as are the factual allegations. The Tribal Court, Judge Bighorn, Sr., presiding, had basically the same materials before him when he issued the Order Denying Jurisdiction.
We will not and should not set aside a judgment based on factual findings of the Court, unless a review of the entire record shows that the judgment was not supported by substantial evidence. II CCOJ § 202. In this case, the factual matters before the Court were supported by substantial evidence in the file.
Our standard for review for questions of law is de novo. II CCOJ § 202. Here, the issue of jurisdiction is well presented bv counsel for Appellant. However, the Court's March 14, 2011 Order is well-reasoned and cited. Basically, neither the Fort Peck Indian Reservation, nor the State of Montana, was the residence of the minor child at time of birth. Although the matter of custody and paternity may eventually be determined in the Fort Peck Tribal Court, the matter is not ripe for those adjudications.
Based on the foregoing, the file and record in this cause;
IT IS THE ORDER OF THIS COURT THAT:
The judgment of the Fort Peck Tribal Court dated March 14, 2011 be, and the same is hereby affirmed.
CLARIFICATION OF ORDER
The Appellant, by and through Court Lay Advocate Alfred B. Azure, Sr., has requested clarification of an Opinion and Order issued by this Court on August 16, 2011.
Specifically, counsel requests clarification of the following statement:
"Although the matter of custody and paternity may eventually be determined in the Fort Peck Tribal Court, the matter is not ripe for those adjudications".
The statement is dictum, and is the opinion writer's remark or observation which is not part of the ruling made in the matter.
The Order of the Court is that the judgment of the Fort Peck Tribal Court dated March 14, 2011 is affirmed.